EMMET G. SULLIVAN, District Judge.
Pending before the Court are two motions to permanently seal from public disclosure the Report to the Honorable Emmet G. Sullivan of Investigation Conducted Pursuant to the Court's April 7, 2009 Order ("Mr. Schuelke's Report" or "Report").
To deny the public access to Mr. Schuelke's Report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice. In July 2008, attorneys in the Public Integrity Section of the Department of Justice indicted a public official for allegedly failing to report gifts on his public disclosure forms. The attorneys then tried the defendant in the most public manner possible, and when they obtained a guilty verdict, they held a press conference to proclaim victory to the public. As a result of that verdict, the public official lost his bid for re-election, which tipped the balance of power in the United States Senate.
Meanwhile, in the face of serious and mounting allegations of prosecutorial misconduct throughout the trial and post-trial proceedings, the attorneys repeatedly represented to the Court and to the public that there was no wrongdoing and no cause to question the integrity of either the indictment or the verdict. Only when faced with uncontroverted evidence that the attorneys had committed Brady violations
The U.S. Court of Appeals for the District of Columbia Circuit has said, following Supreme Court precedent, that First Amendment access to criminal proceedings "serves an important function of monitoring prosecutorial or judicial misconduct." Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) (citations omitted). Mr. Schuelke's five-hundred-page Report concludes that "the investigation and prosecution of Senator Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." Mr. Schuelke's Report at 1.
It is not an overstatement to say that the dramatic events during and after the Stevens trial, and particularly the government's decision to reverse course and move to vacate the verdict, led to a continuing national public discourse on prosecutorial misconduct and whether and what steps should be taken to prevent it. Withholding the Report from the public and leaving the public with only the information from the trial and immediate post-trial proceedings would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided. The First Amendment, the public, and our system of justice demand more.
On April 7, 2009, in response to a series of allegations and confirmed instances of prosecutorial misconduct during and following the five-week trial of U.S. Senator Theodore F. Stevens ("the Stevens trial"), the Court appointed Henry F. Schuelke, III, to investigate and prosecute such criminal contempt proceedings as may be appropriate against the six Department of Justice attorneys responsible for the prosecution of Senator Stevens ("the subject attorneys"). See Order Appointing Henry F. Schuelke, United States v. Stevens, No. 08-cr-231 (D.D.C. Apr. 7, 2009) ("April 7, 2009 Order").
On November 21, 2011, the Court issued an Order indicating, inter alia, that Mr. Schuelke had informed the Court that his investigation was concluded and had submitted a five-hundred-page report to the Court in camera. Order Regarding Report of Henry F. Schuelke, III, and Setting Forth Instructions for Further Proceedings at 12 ("November 21, 2011 Order"). The Court's Order went on to note that based on their exhaustive investigation, Mr. Schuelke and his esteemed colleague, Mr. William B. Shields, had concluded that the investigation and prosecution of Senator Stevens were "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." Id. at 3 (citing Mr. Schuelke's Report at 1). The Court then concluded:
Id. at 7.
In response to the Court's November 21, 2011 Order, the Department of Justice filed a Motion to File On Public Docket the Notice of Department of Justice Regarding Materials Referenced in Mr. Schuelke's Report. The Court granted that motion on January 9, 2012. The Department of Justice's Notice advised the Court that it "does not intend to file a motion regarding Mr. Schuelke's report" and that "[t]he government does not contend that there is any legal prohibition on the disclosure of any references in Mr. Schuelke's report to grand jury material, court authorized interceptions of wire communications, or any sealed pleadings or transcripts that have now been unsealed." Notice of Dep't of Justice Regarding Materials Referenced in Mr. Schuelke's Report, at 1-2 ("DOJ Notice"). In addition, the Department of Justice informed the Court that it was not asserting any deliberative process or attorney-work product privilege with respect to the information contained in Mr. Schuelke's Report. Id. at 2.
Each of the six subject attorneys filed notices, motions and/or memoranda of law in response to the Court's November 21, 2011 Order.
Finally, one entity filed a memorandum urging the Court to release the Report (1) in view of the highly public nature of the Stevens trial, the First Amendment right to access these proceedings and the common law right to access judicial records; and (2) because if the Court were to consider the North factors, those factors weigh heavily in favor of release. See Memorandum in Support of Public Access to Mr. Schuelke's Report filed by Williams & Connolly LLP ("Stevens Memorandum").
Upon careful consideration of the various points and authorities raised for and against public disclosure of Mr. Schuelke's Report, the relevant statutory and case law, the entire record in the Stevens proceedings, and the highly unique circumstances present in this case, and for the reasons discussed below, the Court concludes that (1) the public has an overriding and compelling right to access the Report, and that right is protected by the First Amendment; (2) Mr. Schuelke's investigation differed in significant respects from a grand jury proceeding and is not bound by the grand jury secrecy rules, and moreover the reasons underlying the secrecy of grand jury proceedings are for the most part not relevant in this case; and (3) the D.C. Circuit's approach in North is instructive, and the factors identified in that case as relevant to determining whether to publicly release a special prosecutor's report overwhelmingly counsel in favor of publicly releasing the Report under these circumstances. Accordingly, the Court will order Mr. Schuelke to file his Report on the public docket. In order to address any claimed prejudice to the subject attorneys, however, the Court will first afford them another opportunity to submit objections or comments to Mr. Schuelke to be published as addenda to the Report, similar to the process followed in North and subsequent cases.
The First Amendment to the United States Constitution provides the public with a right of access to judicial proceedings where (i) "the place and process have historically been open to the press and general public"; and (ii) "public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Sup. Ct. of Cal. ("Press-Enterprise II"), 478 U.S. 1, 8 (1986); see also Press-Enterprise Co. v. Sup. Ct. of Cal. ("Press-Enterprise I"), 464 U.S. 501, 505-10 (1984); Globe Newspaper Co. v. Sup. Ct. for Norfolk Cnty., 457 U.S. 596, 605-06 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573-74 (1980).
The right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings. See, e.g., Press-Enterprise II, 478 U.S. at 10-13 (First Amendment right of access to adversarial pre-trial preliminary hearings); Press-Enterprise I, 464 U.S. at 510-11 (First Amendment right to access voir dire proceedings); United States v. Ignasiak, Nos. 09-10596, 09-16005, and 10-11074, 2012 WL 149314, *15-16 (11th Cir. Jan. 19, 2012) (First Amendment right of access to government's post-trial pleading revealing impeachment information of one of its key witnesses where government argued that the witness's privacy interest justified keeping the information under seal); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (First Amendment right of access to documents supporting search warrants); Applications of Nat'l Broad. Co. v. Presser, 828 F.2d 340, 344-45 (6th Cir. 1987) (First Amendment right of access to pretrial documents); CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825-26 (9th Cir. 1985) (First Amendment right of access to post-trial documents regarding potential sentence reduction); Associated Press v. U.S. Dist. Ct. for Cent. Dist. of Cal., 705 F.2d 1143, 1145 (9th Cir. 1983) (First Amendment right of access to pretrial documents); In re Access to Jury Questionnaires, No. 10-SP-1612, 2012 WL 140425, *4-5 (D.C. Jan. 19, 2012) (First Amendment right of access to written juror questionnaires).
Although First Amendment access to criminal proceedings is not absolute, the standard to overcome the presumption of openness is a demanding one:
Press-Enterprise I, 464 U.S. at 510; see also United States v. Brice, 649 F.3d 793, 796-97 (D.C. Cir. 2011) (assuming without deciding that the First Amendment affords access to material witness proceedings but upholding trial court's closure of the proceedings, where opening such proceedings would reveal "private and painful" information related to then-juvenile victims' physical and mental health, constitute a "grotesque invasion of the victims' privacy[,]" and trial court made finding that no alternatives to closure could protect the compelling privacy interests).
As noted above, criminal trials have historically been open to the public. See, e.g., Globe Newspaper Co., 457 U.S. at 603-06; Richmond Newspapers, 448 U.S. at 564-74. The Stevens trial was certainly no exception. In fact, recognizing from the outset the significant public interest in the case, the Court took extensive steps to ensure that members of the public and the media had access to all aspects of the proceedings.
The public's interest in and right to access the Stevens trial was not merely a theoretical one. Rather, the trial received nearly unprecedented media coverage. By the Court's estimation, for the 25 days of trial (including jury selection and deliberation), a total of 51 stories about the Stevens case ran in the front sections of the Washington Post and the New York Times. It is important to note, as the memorandum filed by Williams and Connelly points out, that this media attention was welcomed and even fostered by the prosecutors. See Stevens Memorandum at 1-2. The government issued a press release on the day it indicted Senator Stevens, and Matthew Friedrich, the Acting Assistant Attorney General for the Criminal Division, held a press conference to proclaim the news. See Press Release, U.S. Dep't of Justice, U.S. Senator Indicted on False Statement Charges (July 29, 2008), available at http://www.justice.gov/opa/pr/2008/July/08-crm-668.html (last visited Feb. 6, 2012); Senator Ted Stevens Indictment, C-Span Video Library (July 29, 2008), http://www.c-spanvideo.org/program/280113-1 (accessed by searching "Ted Stevens Indictment" and limiting the date range to July 29, 2008) (last visited Feb. 6, 2012). The Department of Justice posted each day's trial exhibits on its website. On the day of the verdict, Mr. Friedrich stood with the trial team outside the courthouse and pronounced to the television cameras that "[t]he Department is proud of this team, not only for this trial, but for the investigation that led to it." Senator Stevens Verdict News Conference Tr. at 00:03:23, C-Span Video Library (Oct. 27, 2008), http://www.c-spanvideo.org/appearance/554818464 (last visited Feb. 6, 2012).
The public's interest in the Stevens trial did not end after the verdict, nor did this Court's efforts to protect that interest. Two months after the verdict, when the government sought to seal a complaint alleging prosecutorial misconduct filed by the FBI agent who had co-led the investigation of Senator Stevens, the Court issued an opinion concluding that the public had a First Amendment right to access the FBI agent's post-trial complaint and the government's pleadings related thereto. See United States v. Stevens, Crim. No. 08-231 (EGS), 2008 WL 8743218, *8 (D.D.C. Dec. 19, 2008). Following the D.C. Circuit's decision in Washington Post v. Robinson, the Court specifically found that access to the agent's complaint and any resulting proceedings would be likely to serve the important function of monitoring prosecutorial misconduct, especially where motions made during the trial raised the same or similar allegations as those in the agent's complaint, and the complaint specifically included allegations of such misconduct. Id. (citing Robinson, 935 F.2d at 288). As discussed infra, the same conclusion applies to Mr. Schuelke's Report.
The opposing attorneys argue that there is no First Amendment right of access to Mr. Schuelke's Report because it is an investigative document and there is no "unbroken, uncontradicted history" of access to such reports, which are the equivalent of grand jury materials to which the First Amendment does not provide a right of access. See Sullivan Motion at 20-21; Marsh Motion at 10. The opposing attorneys' arguments based on grand jury secrecy are discussed infra Part II.B. As for their contention that the First Amendment does not provide access to the Report because it is an investigatory document unrelated to the Stevens trial, that argument is misplaced.
Mr. Schuelke's Report relates and pertains to the Stevens prosecution, as did the FBI agent's post-trial complaint alleging prosecutorial misconduct in the investigation and trial of Senator Stevens. Rather than moving to dismiss the indictment with prejudice, had the government filed a notice or other pleading with the Court informing the Court that the government had discovered post-trial that the prosecution team had committed additional Brady violations, the Court would have held an evidentiary hearing or otherwise taken steps to learn the extent of the misconduct and determine whether sanctions or other remedies, including criminal contempt proceedings, were appropriate. The public would certainly have enjoyed a First Amendment right of access to those proceedings, under the well-established precedent discussed above. However, in view of the government's unopposed motion to dismiss the indictment and because Senator Stevens had a liberty interest at stake, it would have been inappropriate to defer ruling on the government's motion in order to embark on such proceedings.
Accordingly, during a public hearing on the government's motion held in the Stevens case, the Court appointed Mr. Schuelke to investigate and prosecute any criminal contempt proceedings as may be appropriate. See Transcript of Hearing 46:12 — 47:15, Stevens, No. 08-231 (April 7, 2009) ("April 7, 2009 Tr."). In appointing Mr. Schuelke, the Court explicitly stated that "the Court has an obligation to determine what happened here and respond appropriately, and I intend to do so." Id. 47:20-22. The Court also made clear that the public would have access to that information. See id. 46:9-11. ("This court has an independent obligation to ensure that any misconduct is fully investigated and addressed in an appropriate public forum."). Only after appointing Mr. Schuelke did the Court grant the government's motion to dismiss. Id. 48:17-20.
After a highly publicized trial and months of post-trial proceedings during which the prosecution team repeatedly denied any wrongdoing and zealously defended the guilty verdict it had obtained, the opposing attorneys cannot now circumvent the First Amendment and any public accountability by relying on the government's eleventh-hour motion to dismiss the indictment with prejudice.
The second step in the First Amendment analysis, whether access to the proceeding or document will play a significant role in informing the public regarding the matter at issue, is also satisfied here. As the Court stated during the April 7, 2009 hearing on the government's motion to dismiss the indictment, this was a case with many "dramatic and unfortunately many shocking and disturbing moments." April 7, 2009 Tr. at 3:14-16. Frequently during the trial, the Court was presented with persuasive arguments by the defense that the case should be dismissed or a mistrial declared because of prosecutorial misconduct. See, e.g., Senator Stevens's Mot. to Dismiss Indictment or for Mistrial, Stevens, No. 08-231 (Sept. 28, 2008); Def.'s Emergency Mot. to Dismiss Case or for Mistrial Due to Gov't's Continuing Brady Violations, Stevens (Oct. 2, 2008); Def.'s Mot. to Dismiss Case or for Mistrial Due to Gov't's Failure to Comply with Fed. R. Crim. Proc. 16(a)(1)(E), Stevens (Oct 8, 2008).
In response to those arguments, the subject attorneys repeatedly responded that the mistakes were "unintentional," "inadvertent," and/or "immaterial." For example, when the government failed to produce the exculpatory grand jury testimony of prospective government witness Rocky Williams, the prosecutors claimed that the testimony was immaterial. See Gov't's Opp'n to Def.'s Mot. to Dismiss or for New Trial, Stevens (Sept. 29, 2008). When the government sent Mr. Williams back to Alaska without first advising the defense or the Court, the prosecutors asserted that they were acting in "good faith." Trial Transcript, Oct. 2, 2008, p.m., at 42. When government counsel told the Court that the government's key witness, Bill Allen, had not been re-interviewed the day before the hearing on its Brady disclosures, this was a "mistaken understanding." Gov't's Opp'n to Def.'s Motion to Dismiss Due to Alleged Misconduct at 15 (Oct. 6, 2008). When the government failed to turn over exculpatory statements from Dave Anderson, another government witness, the prosecutors claimed that the statements were immaterial. Trial Transcript, Oct. 8, 2008, p.m. at 58, 62, 64, 67. When the government failed to turn over a grand jury transcript containing exculpatory information, the prosecutors claimed that it was "inadvertent." Trial Transcript, Oct. 6, 2008, p.m. at 95. When the government used "business records" that the government knew to be false, the prosecutors said that it was unintentional. Trial Transcript, Oct. 8, 2008, p.m. at 76. When the government failed to produce the bank records of Bill Allen and then surprised the defense at trial with Bill Allen's check, it claimed that this, too, was immaterial to the defense. Trial Transcript, Oct. 8, 2008, a.m. at 3.
Notwithstanding mounting evidence to the contrary, the Court accepted the prosecutors' representations and declined to dismiss the case or declare a mistrial (though the Court did take other steps to ameliorate the prejudice to the defense). Had the Court known of the misconduct and the information concealed by the government, as documented in the Schuelke Report, those decisions would have been different.
As the Court noted in its November 21, 2011 Order, Mr. Schuelke and Mr. Shields found that the investigation and prosecution of Senator Stevens were "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." See Nov. 21, 2011 Order at 3 (quoting Mr. Schuelke's Report at 1). Mr. Schuelke and Mr. Shields found that at least some of this concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial. In addition, they found evidence of concealment and misconduct previously unknown to the Court and to the defense, even after the government moved to dismiss the indictment. For these reasons, access to the Report would certainly play a positive role in informing the public of the flaws in the criminal trial of Senator Stevens.
Moreover, access to the Report will also play a positive role in the public's understanding of the Court's decision with respect to criminal contempt proceedings in this case. As noted in the Court's November 21, 2011 Order, despite his findings of significant, widespread, and at times intentional misconduct, Mr. Schuelke is not recommending any prosecution for criminal contempt. See Nov. 21, 2011 Order at 4. This is because in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. § 401(3), the contemnor must disobey an order that is sufficiently "clear and unequivocal at the time it is issued." Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Mr. Schuelke concluded that no such order existed in this case. Rather, the Court accepted the repeated representations of the subject prosecutors that they were familiar with their discovery obligations, were complying with those obligations, and were proceeding in good faith. See Nov. 21, 2011 Order at 4-5. Having appointed Mr. Schuelke to "investigate and prosecute" criminal contempt proceedings as appropriate, the Court accepts his findings and conclusions. The public can neither understand the basis for Mr. Schuelke's findings and conclusions, however, nor the basis for the Court's decision to accept those findings and conclusions, without access to the Report.
Further, it is not insignificant to the analysis of the public's right of access to Mr. Schuelke's Report that the public bore the cost not only of the Stevens trial and post-trial proceedings, which resulted in the government seeking permission to dismiss the indictment with prejudice and vacate the verdict, but also the costs associated with Mr. Schuelke's investigation, and the costs associated with the subject attorneys' legal representation throughout that investigation. See, e.g., Joe Palazzo, A Long Career Near the Spotlight But Rarely In It, MAIN JUSTICE (July 17, 2009), http://www.mainjustice.com/2009/07/17/a-long-career-near-the-spotlight-but-rarely-in-it/ (noting that the federal judiciary was paying Mr. Schuelke for the investigation (at a "fraction" of his usual rate) and also paying the lawyers representing the subject attorneys); Brad Heath, Taxpayers Pay to Defend Prosecutors in Ted Stevens Case, USA TODAY, Feb. 2, 2012.
It would be a disservice to the public to require the public to bear these costs, only to deny it the right to access the previously undisclosed facts relevant to the public trial of Senator Stevens and uncovered by Mr. Schuelke's investigation. In fact, the government recently made a similar argument in successfully opposing a defendant's motion to seal a consent judgment. See Plaintiff's Memorandum of Points and Authorities in Opposition to the Defendant's Motion to Seal Document, United States v. Harry L. Thomas, 06-cv-497 (DAR), Doc. No. 30, at 2-3 ("Since this debt involves guarantees by the United States paid on the original promissory notes, it involves the public funds used to pay the guarantees. The public must have access to the information it needs to appraise the Government's work in protecting and preserving these public funds and in implementing the public policy behind guaranteed student loans.").
Finally, access to the Report will play a significant role in the public's understanding of criminal trials and safeguard against future prosecutorial misconduct, considerations the courts have consistently found weigh heavily in favor of the right of access. See, e.g., Press-Enterprise II, 478 U.S. at 12 (stating that public access to criminal proceedings, particularly those where no jury is present, provides a "safeguard against the corrupt or overzealous prosecutor"); Globe Newspaper Co., 457 U.S. at 606 ("Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole."); Richmond Newspapers, 448 U.S. at 569 (finding that open criminal trials "discouraged [ ] the misconduct of participants"); Robinson, 935 F.2d at 288 ("The first amendment protects public access to [] court proceedings . . . and serves an important function of monitoring prosecutorial or judicial misconduct." (citations omitted)).
The Stevens case has come not only to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations, but it has also been credited with changing the way other courts, prosecutors, and defense counsel approach discovery in criminal cases. See, e.g., Amanda Coyne, Could Botched Ted Stevens Prosecution Prompt Federal Legal System Reform?, ALASKA DISPATCH (Nov. 28, 2011), available at http://www.alaskadispatch.com/article/could-botched-ted-stevens-prosecution-prompt-federal-legal-system-reform (recognizing attention the Stevens case has received in Washington, D.C., and around the country); David Ingram, Ted Stevens Became a Symbol for Prosecutorial Misconduct, THE BLOG OF LEGAL TIMES (Aug. 10, 2010, 4:22 PM), http://legaltimes.typepad.com/blt/2010/08/ted-stevens-became-a-symbol-for-prosecutorial-misconduct.html (noting that Stevens has drawn "national attention to the obligations of prosecutors to turn over exculpatory evidence"); DLA Piper's Zeidenberg on Prosecutorial Misconduct, Stevens and Lindsey, 25 CORP. CRIME REPORTER 48 (Dec. 13, 2011), available at http://corporatecrimereporter.com/zeidenberg12132011.htm (stating that judges are taking allegations of prosecutorial misconduct more seriously as a result of Stevens); Carrie Johnson, Court Ruling Reignites Debate Over Sharing Evidence, NPR (Jan. 12, 2012), available at http://www.npr.org/2012/01/12/145102823/court-ruling-reignites-debate-over-sharing-evidence ("Ever since the Ted Stevens fiasco, there have been a lot of nervous people in the Justice Department — all worried about the consequences of making a bad decision.").
In revealing what happened in the Stevens case, Mr. Schuelke's Report sheds significant light on these important issues.
As noted supra, the First Amendment right of access to criminal proceedings is not absolute, but the presumption of openness is overcome only by a compelling interest and a showing that no alternatives to closure can adequately protect that interest. See Press-Enterprise I, 464 U.S. at 510. The opposing attorneys have made no such showing in this case. While objecting generally to release of the Report as unfair and prejudicial to the opposing attorneys' privacy and reputational interests, those attorneys have not specified any compelling interest that would meet their high burden to justify keeping the Report under seal.
Here, the identity of the subjects was known from the outset of the investigation, the matters under investigation were largely known to the public from the outset and arose from the subject attorneys' conduct during the proceedings in a highly-publicized criminal trial, and some of the subject attorneys have themselves made statements to the media regarding Mr. Schuelke's investigation. Under these circumstances, the opposing attorneys have not established an interest sufficiently compelling to justify withholding the Report.
The opposing attorneys' principal argument against publicly releasing Mr. Schuelke's Report is that the investigation conducted by Mr. Schuelke was "substantially the same as a grand jury proceeding and should be bound by the same secrecy rules governing grand jury investigations." Sullivan Motion at 6; see also Marsh Motion at 5; Goeke Memorandum at 1. The opposing attorneys maintain that the reasons underlying the grand jury secrecy rules are equally applicable to Mr. Schuelke's investigation and that it would be unfair and prejudicial to the subject attorneys to release the Report when those attorneys will have no opportunity to challenge the Report's findings in an adversarial proceeding. See, e.g., Sullivan Motion at 8-12; Marsh Motion at 11; Goeke Memorandum at 3. The Court will discuss each of these arguments in turn.
Grand jury secrecy is a long-established principle central to our criminal justice system. See, e.g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n.9 (1979) ("Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye. The rule of grand jury secrecy was imported into our federal common law and is an integral part of our criminal justice system." (internal citations omitted)). The reasons for such secrecy are also well-established.
Douglas Oil, 441 U.S. at 219. For these reasons, Federal Rule of Criminal Procedure 6(e)(2)(B) prohibits disclosure of "matter[s] occurring before the grand jury."
The opposing attorneys' reliance on this principle falters, however, because (a) Mr. Schuelke's investigation was not conducted as part of a grand jury proceeding; (b) Rule 6(e) does not apply to Mr. Schuelke's investigation; and (c) the reasons underlying the need for grand jury secrecy are largely inapplicable to Mr. Schuelke's investigation and the resulting Report.
The Fifth Amendment to the United States Constitution provides in part that no person can be charged with a "capital, or otherwise infamous" crime without a presentment or indictment of a Grand Jury.
This Court appointed Mr. Schuelke during the Stevens case to "investigate and prosecute such criminal contempt proceedings as may be appropriate" against the subject attorneys, pursuant to Federal Rule of Criminal Procedure 42(a)(2).
At least one of the opposing attorneys relies on In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004), for the argument that Mr. Schuelke's investigation was "substantially the same" as a grand jury proceeding. Sullivan Motion at 6. In In re Special Proceedings, the U.S. Court of Appeals for the First Circuit concluded with little discussion or analysis that the "principal reasons for grand jury secrecy" applied with equal force to the special prosecutor's investigation, and that "[w]hat the special prosecutor is currently doing is sufficiently like what a grand jury would do to make the analogy decisive." 373 F.3d at 47.
That case is of limited relevance here, however. As an initial matter, the Court notes that the First Circuit's conclusion about the analogy between the special prosecutor and the grand jury was in the context of a discussion of "an ancillary matter" before that court, i.e., whether to unseal four documents and a deposition transcript.
In the present case, not only was Mr. Schuelke's investigation completely unrelated to and unaffiliated with any grand jury, it also differed in many significant ways from the grand jury process. For example, although Mr. Schuelke was authorized by the Court to subpoena witnesses, none of the subjects was subpoenaed; rather they appeared for deposition voluntarily. Schuelke Decl. ¶ 3. Moreover, whereas witnesses in the grand jury are not permitted to have their counsel present in the grand jury, each of the subjects and other witnesses deposed in this case was represented by counsel, and counsel not only appeared with their client at the deposition, but also were permitted freely to ask questions during the depositions. See Schuelke Decl. ¶ 3. Significantly, and unlike many grand jury investigations, the subjects here were provided with the same underlying documents and information made available by the Justice Department to Mr. Schuelke, who adopted an open-file discovery policy. See Schuelke Decl. ¶ 2.
Finally, not only were the subjects of Mr. Schuelke's investigation publicly known from the outset — indeed, they were announced in open court, named in the Court's Order appointing Mr. Schuelke, and widely covered in the media — but the subjects knew from the outset that the Court intended to make public Mr. Schuelke's findings; in fact, the public's right to know of any misconduct during the Stevens case was the impetus for appointing Mr. Schuelke. See April 7, 2009 Tr. 46:7-11 ("[T]he events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no public accountability. This court has an independent obligation to ensure that any misconduct is fully investigated and addressed in an appropriate public forum."); April 7, 2009 Order (identifying subjects); see also Neil A. Lewis, Tables Turned on Prosecution in Stevens Case, N.Y. TIMES, Apr. 8, 2009, at A1 (detailing Judge Sullivan's order to conduct an external investigation and naming its subjects); James Oliphant, Ted Stevens' Charges Dismissed as Judge Excoriates Prosecutors, L.A. TIMES, Apr. 8, 2009; Del Quentin Wilber, Judge Orders Probe of Attorneys in Stevens Case; Prosecutor Misconduct Alleged in Former Senator's Trial, WASH. POST, Apr. 8, 2009, at A01.
Federal Rule of Criminal Procedure 6(e) requires grand jury secrecy with certain exceptions.
Id. at 667 (citations omitted).
In this case, there is no such statutory or regulatory enforcement scheme requiring confidentiality. Moreover, as discussed supra, the subjects of the investigation, the fact that they were under investigation, and the matters and scope of the investigation have been widely publicized from the outset.
Next, the opposing attorneys argue that the protective orders entered by this Court during Mr. Schuelke's investigation provide for confidentiality of the discovery material produced by the Department of Justice during the investigation, including pre-existing grand jury material covered by Rule 6(e), and therefore Mr. Schuelke's Report "contains the equivalent of grand jury material prohibited from disclosure by grand jury secrecy rules." Sullivan Motion at 8; see also Marsh Motion at 7, 10. Fatal to the opposing attorneys' argument, however, are the facts that (a) the Protective Orders entered by the Court at the request of the Department of Justice provided the Department of Justice — not the subject attorneys — certain protections with respect to the material it was producing to Mr. Schuelke and to the subject attorneys; and (b) in response to the Court's November 21, 2011 Order directing the Department of Justice pursuant to the Amended Protective Order to file a motion if it believed "any of the Material(s) or sealed pleadings or transcripts identified by Mr. Schuelke in his Report should be withheld from the public," the Department of Justice:
DOJ Notice at 1-2 (citing Fed. R. Crim. P. 6(e)(3)(E)(i); 18 U.S.C. § 2517(2)) (footnote omitted).
Accordingly, release of the Report does not violate any legal or procedural rules requiring confidentiality or secrecy.
As cited previously, the reasons for grand jury secrecy are well established:
Douglas Oil, 441 U.S. at 218-19.
These reasons are largely inapplicable to Mr. Schuelke's investigation. First, the subjects in this matter are all government attorneys, and each of them knew or had reason to know what witnesses Mr. Schuelke would likely be interviewing or deposing, most of whom were other government attorneys or employees. As for the non-subject witnesses, because the subjects and scope of the investigation were publicly known from the outset and the investigation itself was the source of considerable media attention, any hesitation to "come forward voluntarily" could not be alleviated by secrecy.
Second, because the subjects are government attorneys, as were most of the other witnesses, the Court assumes that the risk that these individuals would be "less likely to testify fully and frankly" or that they would be "open to retribution as well as to inducements" is minimal, regardless of the level of secrecy afforded by Mr. Schuelke's investigation. Similarly, the risk that the subjects might flee seems remote (in fact, the subjects remain attorneys employed by the Department of Justice), as does the risk that they would try to influence Mr. Schuelke or Mr. Shields to recommend against prosecution. Moreover, Mr. Schuelke and Mr. Shields are both well-respected attorneys with a wealth of experience, including prosecutorial experience, and highly unlikely to be susceptible to any such attempts to influence their decisions in this matter.
The final factor, protecting the accused from "public ridicule," is discussed below, though it is worth noting here that the public has been well aware of the identity of the subjects from the outset.
The opposing attorneys argue that grand juries may not accuse a person of criminal misconduct unless they return a valid indictment, and that grand juries may not issue reports or presentments if the investigation does not lead to an indictment. See Sullivan Motion at 9-10 (citing authorities). Because Mr. Schuelke and Mr. Shields are not recommending that the subject attorneys be prosecuted for criminal contempt, the opposing attorneys contend that the Report should remain sealed, based on the same reasons that grand juries are prohibited from issuing reports in cases where there is no indictment.
As the opposing attorneys point out, there are compelling reasons to prohibit grand juries from issuing reports in cases where there will not be an indictment. See Sullivan Motion at 9-10; Marsh Motion at 11. For example, grand juries are not adversarial proceedings, nor are they governed by the rules of evidence, so the grand jury can "hear any rumor, tip, hearsay, or innuendo it wishes, in secret, with no opportunity for cross-examination." In re Grand Jury Proceedings, Special Grand Jury 89-2 (Rocky Flats Grand Jury), 813 F.Supp. 1451, 1463 (D. Colo. 1992) (citation omitted). Moreover, "[t]he grand jury is not required to hear or consider evidence which would exonerate a target of an investigation, and the fairness of its methods is unreviewable." Id. Finally, as two opposing attorneys argue, "a report issued by a non-indicting grand jury making accusations against an uncharged individual causes the individual to suffer public stigma and reputational damage without affording the individual any meaningful opportunity to rebut the allegations." Sullivan Motion at 10; see also Marsh Motion at 11-12.
The Court is not insensitive to this issue and recognizes that Mr. Schuelke is not recommending criminal contempt proceedings. Nevertheless, the unique circumstances of this case are distinct from the concerns expressed by the opposing attorneys and the Rocky Flats court, and any claimed prejudice to the subject attorneys is further addressed by the Court's decision to permit the subject attorneys to submit comments for publication with the Report.
First, although Mr. Schuelke's investigation was not an adversarial proceeding, the subject attorneys were represented by counsel, who were permitted and did ask questions during the depositions of their clients. See Schuelke Decl. ¶ 3. The subjects were also provided access to the underlying evidence and therefore had the opportunity to, and did, present defenses. See Id. ¶ 2. In fact, this is evident from the deposition testimony excerpted at length in the Report. Moreover, while Mr. Schuelke's investigation was not specifically governed by the rules of evidence, given the nature and scope of the investigation and its subjects, as well as Mr. Schuelke and Mr. Shields' experience investigating, prosecuting and defending criminal matters, see supra n.19, there should be no concern regarding their inclination to consider or be susceptible to "rumor, tip, hearsay, or innuendo."
Finally, the need to guard against any public stigma and reputational damage in releasing the Report is diminished by the unique circumstances of this case. Here, both the issues under investigation and the subjects of the investigation have been known and widely publicized from the outset, as they stemmed from very public proceedings. The subjects were also on notice from the outset that the Court intended the results of the investigation to be public because the Court announced that intent during the April 7, 2009 hearing when it appointed Mr. Schuelke. April 7, 2009 Tr. at 46:7-11 ("[T]he events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no public accountability. This court has an independent obligation to ensure that any misconduct is fully investigated and addressed in an appropriate public forum."). In fact, at least some of the subject attorneys themselves have made statements to the press about the investigation. See, e.g., Mike Scarcella, Judge: Ted Stevens Investigation Reveals Prosecutorial Misconduct, THE BLOG OF LEGAL TIMES (Nov. 21, 2011, 11:57 AM), http://legaltimes.typepad.com/blt/2011/11/judge-ted-stevens-investigation-reveals-proseuctorial-misconduct.html; Mike Scarcella, Appeals Court Backs Civil Contempt Ruling in Ted Stevens Case, THE BLOG OF LEGAL TIMES (Dec. 9, 2011 4:57 PM), http://legaltimes.typepad.com/blt/2011/12/appeals-court-backs-civil-contempt-ruling-in-ted-stevens-case.html.
Moreover, it is significant that two of the six subject attorneys either do not oppose and/or favor publicly releasing the Report. In addition, all of the subject attorneys work for the Department of Justice and were investigated by the Department's Office of Professional Responsibility ("OPR"), presumably regarding the same conduct investigated by Mr. Schuelke, and the Department of Justice has reviewed Mr. Schuelke's Report.
Nevertheless, in order to address any claimed prejudice that could result from releasing the Report when its findings will not be subjected to an adversarial proceeding, the Court will afford the subject attorneys another opportunity to submit comments on the Report. See supra n.8. Those comments shall be published with the Report, to enable the public to consider the subject attorneys' comments simultaneously with the Report. This is in keeping with the process followed by the D.C. Circuit in In re North and subsequent cases, where there were similar concerns about publicly releasing a report containing allegations that would not be subjected to an adversarial process. See North, 16 F.3d at 1236, 1241; see also In re Cisneros, 426 F.3d 409, 413-14 (D.C. Cir. 2005); In re Espy, 259 F.3d 725, 729 (D.C. Cir. 2001).
In the case of In re North, the D.C. Circuit considered whether to publicly release the Independent Counsel's report on the Iran-Contra investigation. 16 F.3d 1234. To be clear, the expired Independent Counsel statute is obviously not directly applicable to this case. Nevertheless, the Circuit's analysis in North is instructive. In North, as here, the court was faced with objections to publicly releasing the Independent Counsel's report based on arguments that (1) it was unfair to release a report raising allegations of wrongdoing when those allegations would not be tested by an adversarial process; and (2) the report contained grand jury material subject to Federal Rule of Criminal Procedure 6(e)'s secrecy requirements. As discussed supra Part II.B., those are the same arguments raised by the subject attorneys opposed to releasing Mr. Schuelke's Report.
In the final analysis, and not without reservations, the North court determined that the report should be released, with the inclusion of an appendix consisting of comments from persons named in the report. 16 F.3d at 1241. The court reached that determination after weighing four factors, and it later used the same framework and reached the same or similar conclusions in two subsequent cases involving whether to release reports by two other Independent Counsel. See id. at 1240-41; Cisneros, 426 F.3d at 413-14; Espy, 259 F.3d at 729-30.
This Court has already determined, as discussed supra Part II.A, that the First Amendment right of access compels disclosure of Mr. Schuelke's Report. A brief discussion of the factors set forth in North, however, demonstrates that those factors also overwhelmingly weigh in favor of disclosure. Those factors are:
North, 16 F.3d at 1240; see also Cisneros, 426 F.3d at 413; Espy, 259 F.3d at 729.
This factor obviously requires little discussion or analysis. As discussed throughout, the subject attorneys were named in the Court's public order appointing Mr. Schuelke, have been identified in any number of articles regarding the investigation, and several have made statements to the media themselves about Mr. Schuelke's investigation.
As previously noted, four of the six subject attorneys oppose releasing Mr. Schuelke's Report — though the degree and extent of their opposition varies. See supra n.5. One of the subject attorneys, on the other hand, "welcomes" release of the Report, and the sixth subject attorney does not oppose release. See Morris Submission; Welch Notice. It is not possible, nor would it be appropriate under the unique circumstances in this case, to release only those portions that relate to the non-opposing attorneys. See, e.g., North, 16 F.3d at 1240 ("Movants seeking release and movants opposing are the subjects of accounts as intertwined and inseparable as fibers within the strands of a woven rope."). Accordingly, while this factor independently might weigh against release, it is heavily outweighed by the other factors under North and for all of the reasons discussed previously in this decision.
This factor weighs heavily in favor of disclosure. Not only does the Report relate to representations made and actions taken by the subject attorneys during and leading up to the highly-publicized Stevens trial, it also reveals underlying facts that counter or contradict some of those actions and representations. In other words, withholding the Report leaves the public in some cases with only the wrong or misleading information.
Finally, this factor also weighs heavily in favor of disclosure.
November 21, 2011 Order at 12.
Moreover, as discussed supra, the Stevens trial and its aftermath have led to an ongoing national dialogue regarding the constitutional and procedural requirements — or lack thereof — that protect defendants in the criminal justice system. See, e.g., Mike Scarcella, Divided on Discovery; A Bare Majority of Judges Would Impose Stricter Rules on Prosecutors, NATIONAL LAW JOURNAL, Mar. 14, 2011 (explaining that Stevens led to a call for the Judicial Conference Criminal Rules Committee to reconsider expanding prosecutors' discovery obligations; according to a survey by the Federal Judicial Center, 51 percent of federal and magistrate judges favor changing Federal Rule of Criminal Procedure 16 to require the disclosure of all exculpatory information to the defense); American Bar Association, Select Committee Report on the ABA Annual Meeting 14 (Sept. 2, 2011), available at http://www.americanbar.org/groups/leadership/2011_annual_house_m tg_docs.html (follow "Select Committee Report (September 7, 2011)" hyperlink) (noting approval by ABA House of Delegates of Criminal Committee Resolution 105D, urging governments to adopt formal disclosure rules requiring prosecutors to disclose exculpatory evidence to defense) (last visited Feb. 6, 2012); MODEL CRIMINAL CODE, 18 U.S.C. § 3014 (Draft Proposed by Nat'l Ass'n of Criminal Defense Lawyers 2011), available at http://www.nacdl.org/NewsReleases.aspx?id=20531 (follow "NACDL Proposed 18 USC § 3014" hyperlink at bottom of page) (requiring prosecutors to disclose information favorable to the defendant) (last visited Feb. 6, 2012). The exhaustive efforts of Mr. Schuelke and Mr. Shields, which involved review of more than 150,000 pages of documents, twelve depositions, witness interviews, and a comprehensive understanding of the government's investigation, charges, pre-trial and trial proceedings, not only in the Stevens matter, but also in relevant aspects of at least two other federal prosecutions brought by the Department of Justice's Public Integrity Section against Alaskan state officials, can greatly inform that national discussion.
As set forth above, the public has a First Amendment right of access to Mr. Schuelke's Report. In fact, under the circumstances of this case, it would be a disservice and an injustice to withhold the results of the Report, particularly where the Court indicated from the outset that it would make the Report public. Mr. Schuelke's Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government's ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate. That the government later moved to dismiss the indictment with prejudice and vacate the verdict months after the trial does not eradicate the misconduct, nor should it serve to shroud that misconduct in secrecy. The First Amendment serves the important function of monitoring prosecutorial misconduct, but the public cannot monitor the misconduct in the Stevens case without access to the results of Mr. Schuelke's investigation, which are detailed in his five-hundred-page Report.
Accordingly, it is hereby
An appropriate Order accompanies this Memorandum Opinion.
